April 2019 - 34

AG LABOR REVIEW
NCAE in forefront of adverse wage rate battle
MICHAEL MARSH
President & CEO
National Council of
Agricultural Employers
Michael@ncaeonline.org
The urban dictionary defines the " tip
of the spear " as an American idiom
commonly used in military operations to
identify the first soldiers to go into a war
zone. When you think of the " tip of the
spear, " you might also think of what comes
behind the tip. A strong foundation must
support the tip for the spear to be effective
in delivering impact to its target.
The National Council of Agricultural
Employers (NCAE) is the " tip of the
spear " for agriculture in Washington,
D.C., advocating legislation, regulation
and federal policies to keep American
agricultural employers sustainable in
the global marketplace. The strong
foundation that supports us are the
hundreds of farm and ranch families
who are members of NCAE.
That NCAE " tip of the spear " was
recently on display in U.S. Federal District
Court in Washington, D. C. when, backed
by its solid foundation, NCAE brought
legal action against the Department of
Labor (DOL). The lawsuit stems from
the department's use of the 2018 USDA
Farm Labor Survey as the basis for the
2019 Adverse Effect Wage Rate (AEWR)
used in the H-2A temporary agriculture
worker visa program.
By statute, the DOL is required to
make certain that an employer's use
of the visa program will not have
an " adverse effect " on the domestic
workforce. The notion is to have farmers
and ranchers first utilize domestic
workers in agricultural jobs before
turning to temporary foreign workers.
The department does not assess actual or
even potential adverse effect but simply
mandates the AEWR. The AEWR is
supposed to be a wage rate that will not
have an adverse effect on these same
domestic U.S. workers.
The department contracts with the
National Agricultural Statistics Service
(NASS) of USDA to perform the Farm
Labor Survey gathering data relative to
wages paid to non-H-2A farmworkers
across the country. USDA performs this
survey as per its contract. Determining
what wage rate, below which U.S.
workers might be adversely affected, is
not the purpose of the survey.
Fewer than 1 percent of U.S. farms
are surveyed, and responses include
U.S. workers employed under an H-2A
contract. The survey also captures total
earnings rather than hourly rates of pay,
so piece rate payments, bonuses and
even overtime wages are factored into
the results. The mandated wage is not to
depress the wages of U.S. workers.
The results of USDA's 2018 Farm
Labor Survey were shocking! The
average wage increase in fiscal year 2018
across all jobs in the U.S. economy was
2.8 percent. The average farmworker
wage inappropriately manufactured by
this economically flawed and biased
methodology, was over twice that rate
at 6.3 percent. The crazy result in some
states reflected average increases of
nearly 23 percent over 2017! That's more
than eight times the increase across all
the jobs in the U.S economy!
NCAE filed suit seeking
injunctive relief against
this unlawful DOL
action in U.S. Federal
District Court.
Historically, the DOL uses these
averages to establish the AEWR for the
subsequent year. There's the rub.
Simply using the average reported
by USDA fails as an adverse effect
wage for several reasons. First is
that it is an average. By using an
average from aggregated data, the
DOL necessarily has plunged the
program into a wage rate that will
only inexorably spiral upward. This is
an economic fact that doesn't require
Ph.D. analysis (although they concur).
Nor does the AEWR account for the
fixed hourly labor costs borne by
H-2A employers but not non-H-2A
employers, such as free housing, free
transportation, visa costs, etc.
The mechanical nature of simply
plugging in this average does not find
that this, or any other super premium
wage rate, is the rate at which an
adverse effect on domestic workers will
be avoided. Instead, it simply lumps
additional costs onto farmers and
ranchers that they can never recover in
the marketplace without ever making the
requisite determination of adverse effect
required by law.
This failure launched the NCAE " tip
of the spear " into flight. NCAE filed
suit seeking injunctive relief against this
unlawful DOL action in U.S. Federal
District Court. The court heard our
complaint and, not surprisingly, antifarmer
activists asked if they could join
the fight against our effort to protect
farmers and ranchers, spouting frivolous
nonsense that lacked foundation in
economics or basic arithmetic.
We await the court's decision.
One thing we know has come out of
this litigation. Government agencies and
anti-farmer activists understand we have
hardened farmers and ranchers as a target.
NCAE is the " tip of the spear, " and the
spear is not to be trifled with.
NCAE is awaiting release of a reported
460-page Notice of Proposed Rulemaking
from the DOL related to the H-2A visa
program. This is part of the Trump
administration's regulatory reform effort
and is something NCAE has engaged with
the White House to accomplish. Perhaps
some AEWR methodology changes will be
included in this rulemaking.
NCAE exists to serve the interests
of agricultural employers. We are
looking to expand and strengthen our
foundation and are looking for people
of courage to stand with us, as we stand
with them. Visit ncaeonline.org to join
the effort. VGN
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April 2019

Table of Contents for the Digital Edition of April 2019
